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HomeMy WebLinkAbout2007-3301 Civil THOM E. LEWIS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : PENNSYLVANIA DEPARTMENT OF : TRANSPORTATION : 07-3301 CIVIL TERM IN RE: APPEAL FROM VEHICLE REGISTRATION SUSPENSION BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., November 28, 2007:-- Thom E. Lewis filed an appeal nunc pro tunc (as allowed by an order dated August 27, 2007) from the suspension for three months by PennDOT of the registration for his 1993 Jeep pursuant to 75 Pa.C.S. Section 1786(d). A hearing was conducted November 26, 2007 on . The notice of suspension was dated and mailed to Lewis on February 6, 2006 , and was based on an electronic transmission to PennDOT from December 12, 2005 Progressive Specialty Insurance Company on , certifying the November 4, 2005 1 December 12, 2005 termination of insurance on the Jeep on . On , PennDOT had sent Lewis the following notice: We recently received information from your insurance company about a cancellation of your automobile insurance. We realize you may have only changed companies; however, insurance companies are only required to notify us of a cancellation of insurance but not when they add you as a customer. Therefore, we need to verify your new coverage with this letter. Please take the time to read this letter carefully and provide us with the __________ 1 Progressive’s notice to PennDOT was not within ten days from the cancellation date of the insurance as required by 67 Pa. Code. 221.1(a). 07-3301 CIVIL TERM Failure to respond to this letter within three needed information. weeks may result in a suspension of your vehicle registration. December 12, 2005 On , Progressive sent petitioner a notice canceling his November 4, 2005 policy effective , declaring that it was void as of that date because March 10, 2006 Lewis’s check for the premium was not honored. On , Lewis filed a complaint with the Insurance Department of Pennsylvania challenging the cancellation of his insurance by Progressive. He asserted that he never received the December 12, 2005 notice of cancellation from Progressive, although he acknowledged that he learned of the cancellation from his insurance agent on December 13, 2005. Lewis’s complaint was dismissed as untimely. On appeal, the dismissal was upheld by the Lewis v. Insurance Department, Commonwealth Court. A.2d (2007 Pa. Commw. Lexis 612, memorandum opinion filed August 28, 2007, and designed an opinion on November 2, 2007). The court stated: Tiffany Burton, an employee of Progressive who deals with cancellation mailings to policyholders, testified that the termination notice was mailed to Lewis in the regular course of business on December 12, 2005, that the notice was sent to the address that Lewis had provided when he applied for the insurance policy and that the notice contained the required information regarding a right to request review by the Insurance Commissioner within thirty days. To corroborate this testimony, Progressive presented a copy of internal business documents establishing the mailing of the notice to Lewis and a certificate of mailing from the United States Post Office. Burton also testified that the notice was not returned to Progressive as undeliverable. * * * Lewis’s mere denial that he received Progressive’s notice is not sufficient to rebut the presumption that the December 12, 2005, notice was -2- 07-3301 CIVIL TERM received. Id. Moreover, Lewis admitted that he had actual notice of the policy termination on December 13, 2005, when his insurance agent informed him of the fact. Therefore, the Insurance Commissioner correctly found that Lewis’s March 10, 2006, request for review was untimely and that she lacked jurisdiction to consider the merits of his case. (Footnote and citation omitted.) In the instant appeal, the record shows that Lewis obtained new insurance on his December 16, 2005 Jeep from a company other than Progressive on , which was 42 days from the effective date of the cancellation by Progressive of November 4, 2005, three days after Lewis learned of the cancellation from his insurance agent on December 13, 2005, and four days after Progressive sent him notice of the cancellation on December 12, 2005. PennDOT maintains that it was required to suspend Lewis’s vehicle registration for three months pursuant to 75 Pa.C.S. § 1786(d) of the Vehicle Code because he had no insurance for more than thirty days between November 4, Beitler v. Commonwealth of Pennsylvania, 2005 to December 16, 2005. In Department of Transportation, Bureau of Motor Vehicles, 811 A.2d 30 (Pa. Commw. 2002), the Commonwealth Court stated that a cancellation of automobile insurance is a termination of a policy prior to its expiration, and that the Insurance Company Law of 1921, 40 P.S. §§ 991.2001-2013, provides in Article XX: [t]hat a policy cancellation cannot be effected without prior notice. It states: A cancellation or refusal to renew by an insurer of a policy of automobile insurance shall not be effective unless the insurer delivers or mails to the named insured at the address shown in the policy a written notice of the cancellation or refusal to renew. The Court noted that challenges to an insurer’s action must be presented to the -3- 07-3301 CIVIL TERM Department of Transportation, Bureau of Driver Insurance Department. Citing Licensing v. Riley, 150 Pa. Commw. 259 (1992), the Court stated that when PennDOT seeks to suspend a vehicle registration for three months pursuant to Section 1786(d): [t]o sustain its burden of proof, DOT must establish: (1) that the vehicle in question is of a type required to be registered in the Commonwealth; and (2) that the required automobile liability insurance had been cancelled or otherwise terminated.” To sustain its burden of proof, DOT must establish the policy period and whether it terminated on the twelve- month anniversary date or at mid-policy. Next, it must show that in a termination for non-payment of premium, a notice of cancellation was sent, if required. In the absence of such notice, a cancellation is not effected and the predicate act for suspending a registration has not occurred. (Footnote omitted.) * * * [t]he requirements of the Vehicle Code means that DOT must prove that an insurance policy cancellation has been effected. DOT does not meet its burden of proving that the vehicle owner was without insurance coverage for 31 days until it proves that the insurer sent a notice of cancellation or non-renewal. sub judice, In the case Progressive did not send a cancellation notice to Lewis until December 12, 2005, which was already 38 days after the effective date of the cancellation effective November 4, 2005. Thus, Lewis could not have purchased new insurance within 30 days of the effective date of the cancellation and avoided a three month registration suspension even if he would have been able to certify that he did not operate or permit the operation of the Jeep during the period of lapse in financial responsibility. See 75 Pa.C.S. § 1786(d)(2). Notwithstanding, because Lewis was without insurance for more than thirty days and Progressive sent him notice of the -4- 07-3301 CIVIL TERM cancellation, PennDOT was required to suspend his vehicle registration for three months. ORDER OF COURT AND NOW, this day of November, 2007, the appeal of Thom E. Lewis IS DISMISSED. from the appeal of the registration for his 1993 Jeep for three months, By the Court, Edgar B. Bayley, J. Thom E. Lewis, Pro se 263 Texaco Road Mechanicsburg, PA 17055 George Kabusk, Esquire For Department of Transportation :sal -5- THOM E. LEWIS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : PENNSYLVANIA DEPARTMENT OF : TRANSPORTATION : 07-3301 CIVIL TERM IN RE: APPEAL FROM VEHICLE REGISTRATION SUSPENSION BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of November, 2007, the appeal of Thom E. Lewis IS DISMISSED. from the appeal of the registration for his 1993 Jeep for three months, By the Court, Edgar B. Bayley, J. Thom E. Lewis, Pro se 263 Texaco Road Mechanicsburg, PA 17055 George Kabusk, Esquire For Department of Transportation :sal